Sheiffer v. Fox
| Decision Date | 19 November 2021 |
| Docket Number | Index 162180/2015 |
| Citation | 2021 NY Slip Op 32364 (U) |
| Parties | JAIME SHEIFFER, Plaintiff, v. NATHAN FOX, M.D., ADRIENNE BARASCH, M.D., SUSAN PESCI, M.D., SAMUEL BENDER, M.D., MICHAEL SILVERSTEIN, M.D., STEPHANIE MELKA, M.D., NEIL GRAFSTEIN, M.D., CIARA MARLEY, M.D., PAUL CHOI, M.D., JERRY BLAIVAS, M.D., MATERNAL FETAL MEDICINE ASSOCIATES, PLLC, THE MOUNT SINAI HOSPITAL, NEW YORK UROLOGICAL ASSOCIATES, P.C., EAST RIVER IMAGING, P.C., and UROCENTER OF NEW YORK, Defendants. MOTION SEQ. No. 002 |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
JOHN J. KELLEY JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102 103, 104, 105, 126, 128, 130, 132, 134, 135, 136, 137, 138 139, 141, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152 153, 154, 155 were read on this motion to/for JUDGMENT - SUMMARY .
In this action to recover damages for medical malpractice, based on alleged departures from good and accepted medical practice and failure to obtain the plaintiff's informed consent, the defendants Ciara Marley, M.D., and New York Urological Associates, P.C. (together the NYUA defendants) move pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff opposes the motion and cross-moves pursuant to CPLR 3126 to strike the NYUA defendants' answer or, in the alternative, for the issuance of a negative inference charge at trial, as a sanction for those defendants' spoliation of evidence. The NYUA defendants oppose the cross motion. The NYUA defendants' motion is granted only to the extent that they are awarded summary judgment dismissing the lack of informed consent cause of action insofar as asserted against them, and the motion is otherwise denied. The plaintiff's cross motion for spoliation sanctions is denied.
In her complaint, the plaintiff asserted that Marley was a urologist employed by New York Urological Associates, P.C. (NYUA), between March 13, 2014 and June 28, 2014, and that, during that period of time, the plaintiff was a patient of the NYUA defendants. The plaintiff further alleged that the NYUA defendants departed from good and accepted medical practice in failing to diagnose her medical conditions, and that this departure caused her to sustain injuries. In addition, the plaintiff asserted that the NYUA defendants failed to obtain her informed consent to engage in the course of treatment that they rendered to her. The plaintiff also contended that NYUA was vicariously liable, as Marley's employee, for any malpractice that Marley may have committed.
In her bill of particulars as to the NYUA defendants, the plaintiff limited her allegations of malpractice against them to the period from May 9, 2014 to June 28, 2014. The plaintiff contended that the NYUA defendants departed from good and accepted medical practice in negligently failing to diagnose the presence of a vesicovaginal fistula, an opening that develops between the bladder and the wall of the vagina. As elements of the alleged negligence leading up to the failure to make a proper diagnosis, the plaintiff asserted that the NYUA defendants failed to consider vesicovaginal fistula as a differential diagnosis that explained the plaintiff's signs and symptoms, ignored those signs and symptoms, and ignored the plaintiff's subjective complaints. In addition, the plaintiff asserted that the NYUA defendants negligently failed to recommend and order that she immediately undergo a CT cystogram, instead improperly ordering an abdominal CT scan. She further alleged that, when a cystogram was finally performed on May 14, 2014, the NYUA defendants negligently misinterpreted the results and failed properly to review the plaintiff's prior radiological studies. The plaintiff avers that, consequently, the NYUA defendants negligently delayed the commencement of treatment for a vesicovaginal fistula.
With respect to the allegations that the NYUA defendants failed to obtain the plaintiff's informed consent to various procedures and treatments, the plaintiff included in her bill of particulars a long boilerplate paragraph asserting that those defendants failed to inform her or risks, alternative treatments, and the like, but she does not identify what treatment, procedure, or course of therapy was rendered or performed by the NYUA defendants that she would not have approved had she been informed of any risks or alternative treatment.
The plaintiff asserted, in her bill of particulars as to the NYUA defendants that, as a consequence of their malpractice, she was caused to suffer dysuria, or pain upon urinating, a urinary tract infection with concomitant pain, urinary incontinence, lower back pain, as well as pain while walking, sitting, and standing, and to continue to suffer the effect of a vesicovaginal fistula extending from the left midline bladder dome to the left anterior vaginal vault. The plaintiff further asserted that she was ultimately caused to undergo surgery to close the fistula on June 28, 2014, and suggests that, had the NYUA defendants properly diagnosed that condition at the appropriate juncture, she would have undergone surgery earlier, thus shortening the period of time that she experienced pain.
In support of their motion, the NYUA defendants submit the pleadings, the plaintiff's bill of particulars, the parties' deposition transcripts, and relevant medical and hospital records. They also submit the expert affirmation of Robert Waldbaum, M.D., a board-certified urologist licensed to practice medicine in New York. He provided his opinion, with a reasonable degree of medical certainty, that the NYUA defendants did not depart from good and accepted medical practice in examining and treating the plaintiff, and that such and examination and treatment did not cause or contribute to the plaintiff's injuries in any event. Specifically, he opined that Marley and NYUA properly performed or ordered the proper diagnostic tests in the correct sequence and did not misread or misinterpret any of the scans or test results that she reviewed.
As Dr. Waldbaum described it, the medical records revealed that the plaintiff underwent cesarean section on March 20, 2014 at the defendant Mount Sinai Hospital, during which a bladder laceration was detected. Dr. Waldbaum explained that this "complication" was repaired by the defendant Neil Grafstein, M.D., who thereupon performed a cystogram at that hospital that was negative for fistula. According to Dr. Waldbaum, his review of the records and deposition transcripts indicated that the plaintiff visited Grafstein at his office on April 1, 2014, where he performed a second cystogram that also was negative for fistula.
As Dr. Waldbaum explained it, the plaintiff first visited Marley at NYUA on May 9, 2014, or seven weeks after surgery, complaining that, for at least one week, she felt like she was leaking urine. The plaintiff did not have blood in her urine, painful urination, or cloudy discharge of urine. A urinalysis ordered by Marley was negative. The plaintiff told Marley that, when she resumed her intake of alcohol subsequent to the cesarean section, she observed urinary leakage, in response to which Marley advised her to discontinue the intake of alcohol and caffeine. According to Dr. Waldbaum's review of Marley's chart, Marley conducted a physical examination of the plaintiff, consisting of general abdominal and pelvic exams, as well as a methylene blue test to rule out dysplasia, or pre-cancerous lesions, and that both the examinations and the chemical test were negative for any adverse conditions. The plaintiff exhibited a healing pfannenstiel incision from the cesarean section procedure, her introitus, or vaginal opening, was moist, and there was no cystocele or rectocele. According to Dr. Waldbaum, Marley's differential diagnoses did, in fact, address concerns that the plaintiff may have had either a ureterovaginal or vesicovaginal fistula, and that, inasmuch as the moist introitus raised suspicion of a fistula, Marley properly ordered an abdominal CT scan, also known as a urogram, and referred the plaintiff to the defendant East River Medical Imaging, P.C. (East River).
As Dr. Waldbaum recounted it, on May 10, 2014, the defendant Paul Choi, M.D., a neuroradiologist at East River, interpreted the abdominal CT test, and reported to Marley that it was negative for the presence of either a ureterovaginal or vesicovaginal fistula. Dr. Waldbaum explained that relevant medical records revealed that the plaintiff returned to Marley on May 14, 2014, at which time Marley performed a cystogram that was negative. In addition, at this visit, routine urinalysis and urine cultures were taken, and Marley again instructed the plaintiff to cut back on her intake of alcohol and caffeine and to follow up if her symptoms persisted. The medical records reflect that Marley called the plaintiff several weeks later to follow up on the plaintiff's condition, and left a voicemail message for her, but that the plaintiff did not return the call.
Dr Waldbaum opined that Marley obtained a proper and appropriate medical history from the plaintiff, eliciting information concerning the March 20, 2014 cesarean section, the bladder injury that Grafstein repaired, and the subsequent removal of a Foley catheter on April 1, 2014. The defendant's expert also noted that Marley properly elicited from the plaintiff that the plaintiff had no complaints for the first seven weeks after the surgery, and only began to have urinary "accidents" without warning or stress on or about May 1, 2014, when she began leaking urine when moving to a standing position. Dr....
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